Civil rights statutes put at risk by health care decision

Posted Fri, June 29th, 2012 9:54 am by Kevin Russell

Starting to think about the potential collateral consequences of the health care ruling, I think it is very likely that one of its major impacts will be to revive claims that several significant civil rights statutes, enacted under Congress’s Spending Power, are unconstitutional.

In the health care decision, the Court held that Congress exceeded its Spending Clause authority by forcing states into an all-or-nothing choice by threatening to revoke all of their Medicaid funding if they did not participate in the Medicaid expansion. A decade or so ago, several states made similar challenges to a number of important civil rights statutes that condition receipt of federal funds on the state’s agreement to abide by non-discrimination principles in the federally funded programs. These statutes include Title IX (sex discrimination in federally funded education programs), Title IV (race discrimination in any federally funded program), and the Rehabilitation Act (disability discrimination in federally funded programs). States argued that by threatening to take away all of a program’s funds if the State’s didn’t agree to abide by these statutes, Congress was engaging in unconstitutional coercion.

Mostly, the states were arguing not so much that the anti-discrimination mandate was unconstitutional, but that the states were unconstitutionally coerced into agreeing to waive their sovereign immunity and submit to private lawsuits by individuals alleging discrimination in violation of the federal statutes. But the coercion claim would have applied equally to the requirement to refrain from discrimination in the first place.

All of these challenges failed. But it seems likely that many will now be revived. States can now point to the Supreme Court’s striking down of the Medicaid Expansion for support for the proposition that the coercion doctrine — which had been mentioned but never enforced by the Supreme Court in prior decisions — is real and has teeth. And they can look to the majority and dissenting decisions for guidance on what counts as unconstitutionally coercive.

This does not mean they will succeed. To be honest, I find the opinions to be remarkable thin on doctrinal guidance. The Justices mostly adopted a “we know it when we see it” theory of coercion in this case. The lower courts are going to have to spend a lot of time trying to turn the Court’s gut reaction into a set of legal principles.

But two aspects of the Medicaid Expansion were particularly troubling to seven of the nine Justices — (1) the law threatened to take away all of what was a very large amount of funding upon which states have become reliant, and (2) as the Justices saw it, Congress was threatening to withhold funding for one program (the old Medicaid program) for non-compliance with the rules of a separate program (the new Medicaid expansion program).

These two factors point both ways with respect to the civil rights statutes. Often, the statutes apply to programs that receive many millions of dollars in federal aid, all of which is theoretically at risk if the State refuses to promise to abide by the required non-discrimination principles. On the other hand, unlike the Affordable Care Act — which seemingly required the federal government to withhold all funds if the state refused the expansion — I believe that the civil rights statutes permit the government discretion in setting the amount of the withholding for non-compliance. (Although I am not sure what would happen if the state refused, at the outset, to agree not to discriminate). At oral argument, Justice Breyer suggested that such enforcement flexibility (which he proposed to read into the Affordable Care Act) would save the statute from being unconstitutional on its face. What would be unconstitutional is a disproportionate response to violations, rather than requiring the states to agree to the funding conditions in the first place.

Second, the civil rights statutes tend to operate program-by-program (although the definition of “program” is fairly broad). So, for example, a state does not risk losing its transportation funding if it discriminates in a scholarship program. So the civil rights statutes arguably do not pose the problem of threatening one program for non-compliance with the rules of another. In addition, the program-by-program limitation reduces the amount of funding at issue which, while large, is significantly smaller than the amount of money at issue in the Medicaid program. And the Court seemed to take pains to emphasize that Medicaid’s vastness put it in a field by itself.

Finally, like the Affordable Care Act, it is possible to argue that the civil rights statutes are supported by more than one federal power — as applied to state and local governments, they may be valid exercises of Congress’s power to enforce the Equal Protection Clause of the Fourteenth Amendment; as applied to private entities, they may be valid Commerce Clause legislation. But defending the laws on those grounds has its own difficulties.

In the end, I would be surprised if the Supreme Court ended up striking down any of these civil rights provisions. But I would not be surprised to see some lower courts holding the statutes unconstitutional, and I would shocked if states did not ask them to do so.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.